Editorial credit: Vic Hinterlang / Shutterstock.com
By Suchita Mathur | January 23, 2024
Buoy barriers with chainsaw devices in the Rio Grande river. Coils of concertina wire along the riverbank. Armored Humvees blocking access roads. Piles of dirt rendering gates unusable. Governor Greg Abbott’s cruel attempts to booby trap the Texas border to prevent U.S. Border Patrol agents from reaching migrants might be considered comical, if not for the many human lives put at risk and the threat to the rule of law that result from his Wile E. Coyote-inspired antics. Texas’ latest violent and lawless tactics have led to the deaths of multiple migrants, as well as an escalating standoff between federal and state authorities that challenges the core principles of how our government is supposed to function.
The Supreme Court on Monday finally stepped in to mediate one arena of the feud between the federal government and Texas, issuing a temporary ruling in favor of the Biden administration. The case, filed by Texas in federal district court last year, involves the razor wire that Governor Abbott has put up along parts of the U.S.-Mexico border.
In November, the district court reluctantly denied Texas’ request to prohibit U.S. Border Patrol from cutting through the wire when necessary to reach migrants stranded on the other side. However, the Fifth Circuit Court of Appeals, a notoriously conservative court, issued an injunction pending appeal in favor of Texas—essentially preventing federal agents from accessing various stretches of the international boundary and U.S. territory except in narrowly circumscribed emergency circumstances.
The Supreme Court’s order restores some semblance of the status quo by allowing Border Patrol agents to cut or move Texas’ razor wire when they deem it necessary to carry out their official duties. Meanwhile, Texas’ appeal of the district court’s order will proceed at the Fifth Circuit and likely end up back on the Supreme Court’s docket.
What is Texas doing at the border?
Importantly, Monday’s ruling addresses only a small piece of the chaos created by Governor Abbott’s “Operation Lone Star,” which will continue to endanger human life and waste taxpayer money for the foreseeable future.
Since 2021, Texas has been attempting to create and enforce its own immigration policy. Early efforts included criminalizing would-be asylum seekers by charging them with misdemeanor trespass offenses. Governor Abbot has now upped the ante by implementing a series of harmful and dangerous maneuvers he claims are meant to deter irregular crossings. Texas has placed buoys in the Rio Grande and erected the concertina wire at issue in the Supreme Court case. It has also enacted SB4, a flawed “improper entry” law already subject to two legal challenges.
The most recent escalation began on January 10, when Texas began barring Border Patrol from operating in Shelby Park, a park in Eagle Pass that includes a 2.5-mile stretch of land along the Rio Grande. Federal agents previously used the park to monitor the river, launch patrol boats, and inspect migrants apprehended in the surrounding area.
Within two days of Texas officials seizing Shelby Park, a mother and her two young children had died in the river. As the solicitor general noted in an update to the Supreme Court discussing the deaths, Border Patrol might have been able to timely intervene had it had its former surveillance and monitoring capabilities in the park.
Governor Abbott’s political stunts not only have horrific human consequences, they haven’t worked well: the multi-billion dollar operation has had little overall effect on migration.
However, Governor Abbott is not the only one with blood on his hands. Since taking office, the Biden administration has implemented policies that prevent migrants from presenting at a port of entry along the border. As the district court judge noted, irregular crossings by migrants desperate to seek protection are the entirely foreseeable result of cutting off access to “lawful entry” at ports.
What role are federal courts playing in all of this?
While the Solicitor General cited concerns about the rising tensions between Border Patrol and Texas officers around Shelby Park, the Supreme Court’s order does not actually affect Texas’ closure of the park to federal officials. It also doesn’t prohibit Texas from continuing to litter the river and its banks with giant buoys, concertina wire, and armored vehicles.
Governor Abbott’s actions and arguments are legally problematic. Immigration and regulating the entry of people into the country are supposed to be the sole responsibility of the federal government. Texas’ lawsuit alleges that Border Patrol is committing state law torts by cutting through razor wire. It seeks an injunction against the U.S. government based on the costs of the wire and repairs.
But as the Solicitor General argued to the Supreme Court, federal law grants Border Patrol authority to access any land within 25 miles of the international border, and requires federal officers to inspect and process individuals who are physically present on U.S. territory—as are migrants who have made it across the Rio Grande. The Constitution’s Supremacy Clause does not allow states to use their own laws to stop federal officers from carrying out such federally authorized activities. Nor is it clear that a state can seek an injunction against the federal government based on state tort claims.
While the Fifth Circuit’s injunction has now been summarily reversed by the Supreme Court, the court of appeals continues to consider the merits of the case. Oral argument is scheduled for early February. Whether the court will change course given the intervening Supreme Court order is an open question—notably, and shockingly, four of the nine Supreme Court justices expressly stated they would have denied the government’s request to vacate the injunction.
Texas’ real grievance is its belief that the Biden administration is “not attempting to enforce” immigration laws because Border Patrol officers are not actively “repelling” migrants who have crossed the river. Forcing people who are already on U.S. territory back across the border is not, of course, something that federal officers are authorized to do—at least not under current immigration laws. Disturbingly, that could change in the near future. In the meantime, Texas continues to brazenly attempt to “unsettle[] the underpinnings of our federal system” while the federal judiciary does the bare minimum to stop it.